ComplianceLegalOctober 07, 2020

The importance of background checks for prospective hires

Background checks should be a part of just about every employer's recruiting and hiring process. The checks can range from consulting with references to checking criminal records. If your employees have contact with the public or financial transactions, you should be particularly thorough about your background checks to avoid negligent hiring claims.

A critical part of the hiring process and one that smaller employers in particular may overlook is a background check for the job applicant you are considering hiring. So once you have collected information about job applicants and have interviewed the candidates you're interested in, the next step is checking the background of your prospective employees.

Because so many people misrepresent their background and credentials, it is important to do at least a little checking to see if what the applicant says about his or her background is true. A lot of employers don't do any checking, and they often regret that decision. The applicant may be unqualified for the job, or may have some personality trait or past experience that causes problems for you later.

Types of checks

Various types of background checks can be utilized to screen applicants and range from general types of checks such as checking employment and personal references, to screening that may be necessary, or even permitted by law, only for certain types of positions:

  • Checking education records if a position requires a degree would be prudent as would checking driving records for a hire in flower shop whose job duties would include deliveries.
  • If your employees have significant contact with the public, customers, patients, or children, you'll want to be particularly careful about doing a thorough background check, including a check of criminal records to the extent permitted by law.
  • Checking credit reports is restricted by federal and increasingly state law and is recommended and permitted in limited employment situations.

If your prospective applicant will have contact with other employees or with customers, an important reason to do an appropriate background check is to avoid negligent hiring claims. If you have an employee who turns violent and harms either a customer or another employee, you could be slapped with a lawsuit if checking would have kept you from hiring that person.

Your business can be legally liable for negligent hiring if you fail to uncover a job applicant's incompetence or unfitness by checking their references, criminal records, or general background.

You can be sued for negligent hiring for failure to become aware of an employee's unfitness for a particular position, or for subsequent failure to take any corrective action, such as training, reassignment, or discharge, to remedy the problem once you find out about it.

Every employer, but again, particularly those who have employees who have or will have significant contact with the public, customers, patients, or children, should familiarize themselves with the particulars of what constitutes negligent hiring.

Once you understand what constitutes negligent hiring, you'll be better equipped to avoid and if necessary, combat, negligent hiring claims.

What constitutes negligent hiring?

A good way to explain what constitutes negligent hiring in the eyes of law is to familiarize yourself with what must generally be shown in order for a customer, employee, or other third party to prevail in a negligent hiring suit against an employer:

  • the existence of an employment relationship between the employer and the worker
  • the employee's unfitness
  • the employer's actual or constructive knowledge of the employee's unfitness (failure to investigate can lead to a finding of constructive knowledge)
  • the employee's act or omission causing the third party's injuries
  • the employer's negligence in hiring the employee as the most likely cause of the person's injuries

Combating negligent hiring claims

You have a duty to make a reasonable investigation of an applicant's fitness before hiring. The extent of the duty may vary with the circumstances. You can be held liable if: 

  • you didn't do a background check
  • you hired an employee you should have known (through proper checking) was incompetent or unfit

For jobs in which the employee will have access to people's homes or to sensitive information, you should conduct a criminal records check.

State laws may require you to check criminal records when hiring employees for what are considered sensitive positions. As a rule you cannot check arrest records; only conviction records. Even then, the conviction generally has to bear some relationship to the job in order to constitute a sufficient reason not to hire. Check our state map for the laws in your state.

On the other hand, some state laws grant certain protections regarding criminal record disclosure, so check to see that you are not violating them by making a criminal record search.

Nikki Nelson
Customer Service Manager
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